Harring v. Martens

Filing 12

ORDER VACATING 10 FINDINGS AND RECOMMENDATIONS; ORDER DEEMING First Amended Complaint Timely Filed signed by Magistrate Judge Barbara A. McAuliffe on 8/1/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID HARRING,

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Plaintiff,

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No. 1:14-cv-0310 AWI-BAM
ORDER VACATING FINDINGS AND
RECOMMENDATIONS

v.
(Doc. 10)

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CHRISTOPHER MARTENS,

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Defendant.

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ORDER DEEMING FIRST AMENDED
COMPLAINT TIMELY FILED
(Doc. 11)

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Plaintiff, David Harring (“Plaintiff”), a state prisoner housed at Kern Valley State Prison,

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proceeding pro se and in forma pauperis, has filed this civil action seeking monetary damages

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and other relief.

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On April 16, 2014, the Court dismissed Plaintiff’s initial complaint in this matter for

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failure to state a claim upon which relief may be granted and ordered Plaintiff to file an amended

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complaint within thirty days. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e). On May 22, 2014, the

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Court granted an extension of time for plaintiff to file an amended complaint. Plaintiff failed to

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file a timely First Amended Complaint, and on June 26, 2014, this Court issued Findings and

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Recommendations to dismiss this action for Plaintiff’s failure to obey the Court’s order. (Doc.

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10).

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On July 23, 2014, Plaintiff filed objections to the Findings and Recommendations,1 and

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also a First Amended Complaint. (Doc. 11). Plaintiff cites delays by the prison mail room for

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his untimely First Amended Complaint. Plaintiff asserts that he prepared his First Amended

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Complaint well before the submission deadline and served it on the prison mail room in a timely

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manner. Plaintiff requests the Court to excuse the delay, which was out of his control.

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In light of Plaintiff’s objections and his submission of the First Amended Complaint on

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July 23, 2014, the Court finds good cause to vacate the Findings and Recommendations and deem

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the First Amended Complaint timely filed.
Accordingly, IT IS HEREBY ORDERED that:

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1.

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VACATED;
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The Findings and Recommendations filed June 26, 2014 (Doc. 10) are

Plaintiff’s First Amended Complaint, filed on July 23, 2014, is deemed timely

filed (Doc. 11); and
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The Court shall screen the First Amended Complaint in due course.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

August 1, 2014

A. McAuliffe

UNITED STATES MAGISTRATE JUDGE

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Plaintiff’s objections are styled as a motion for reconsideration to file his amended complaint

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